Citation Nr: 1032201
Decision Date: 08/26/10 Archive Date: 09/01/10
DOCKET NO. 08-26 260A ) DATE
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On appeal from the
Department of Veterans Affairs Health Administration Center in
Denver, Colorado
THE ISSUE
Eligibility for benefits through the Civilian Health and Medical
Program of the Department of Veterans Affairs (CHAMPVA), for the
Veteran's spouse, from November 1, 2007.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and the appellant
ATTORNEY FOR THE BOARD
J. M. Macierowski, Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to December 1968.
The Appellant is the Veteran's wife.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal of June 2008 denial by the Health Administration Center
(HAC) in Denver, Colorado. The appeal was certified to the Board
by the Department of Veterans Affairs (VA) Regional Office in
Winston Salem, North Carolina (RO). The Veteran and the
Appellant testified at a May 2010 Board hearing held by the
undersigned sitting at the RO, a transcript of which is
associated with the claims file.
The Veteran's appeal was remanded by the Board in October 2009,
so that the appellant could be afforded the Board hearing that
she had requested. As noted above, that hearing was conducted in
May 2010. Accordingly, the Board finds that there has been
substantial compliance with the directives of the October 2009
Remand in this case, such that an additional remand to comply
with such directives is not required. See Stegall v. West, 11
Vet. App. 268 (1998).
FINDING OF FACT
On November 1, 2007, the appellant had not yet reached the age of
65, and was enrolled in Medicare Part A, but not yet enrolled in
Medicare Part B.
CONCLUSION OF LAW
The criteria for eligibility for CHAMPVA benefits for the
appellant beginning November 1, 2007 have not been met. 38
U.S.C.A. § 1781 (West 2002 & Supp. 2009); 38 C.F.R. § 17.271
(2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 5103, VA must notify a claimant of the
information and evidence not of record that is necessary to
substantiate the claim, and of which information and evidence
that VA will seek to provide and which information and evidence
the claimant is expected to provide. However, the Board finds
that VA was not required to provide the appellant with such
notice, as this case is one where as a matter of law, entitlement
to the benefit claimed cannot be established. See 38 C.F.R. §
3.159(b) (3) (ii) (2009). This extends to the situation where a
claim cannot be substantiated based on the application of the law
to undisputed facts. See VAOPGCPREC 5-2004; see also Valiao v.
Principi, 17 Vet. App. 229, 232 (2003). As the pertinent facts
in this case are undisputed, and the law as mandated by statute,
and not the evidence, is dispositive of this appeal, the Board
finds that no further action is required pursuant to the VCAA.
See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis
v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of
the law to the facts is dispositive, the appeal must be
terminated because there is no entitlement under the law to the
benefit sought). Moreover, as the outcome of the case is based
on the law and not the evidence, the holdings of Bryant v.
Shinseki, --- Vet. App. ----, No. 08-4080 (Jul. 1, 2010),
regarding the duties of Board hearing officers during the course
of a Board hearing, are not applicable here.
CHAMPVA is the Civilian Health and Medical Program of the
Department of Veterans Affairs and is administered by the Health
Administration Center (HAC), Denver, Colorado. Under 38 U.S.C.
1781, VA is authorized to provide medical care in the same or
similar manner and subject to the same or similar limitations as
medical care furnished to certain dependents and survivors of
active duty and retired members of the Armed Forces. The CHAMPVA
program is designed to accomplish this purpose. Under CHAMPVA,
VA shares the cost of medically necessary services and supplies
for eligible beneficiaries. 38 C.F.R. § 17.270 (2009).
The appellant claims entitlement to CHAMPVA on the basis that she
is the spouse of the Veteran, who the record reflects was found
by VA to be permanently and totally disabled as of June 1, 2005.
38 C.F.R. § 17.271 (a) (1) (2009). However, individuals under
age 65 retain CHAMPVA eligibility as secondary payer to Medicare
Parts A and B, Medicare supplemental insurance plans, and
Medicare HMO plans, only if they are entitled to Medicare Part A
and enrolled in Medicare Part B. 38 C.F.R. § 17.271 (b) (1)
(2009). In this case, the evidence reflects that the appellant
enrolled in Medicare Part A, effective November 1, 2007.
However, there is no documentation in the claims file showing
that she also enrolled in Medicare Part B at that time, or any
time thereafter, despite her testimony at the June 2010 hearing
that she had enrolled effective July 1, 2009. Regardless, absent
such evidence of Medicare Part B enrollment at the time of her
eligibility for Medicare Part A, she is not eligible for CHAMPVA
benefits for the period beginning November 1, 2007.
The appellant has argued, to include at her June 2010 hearing,
that she was informed by VA personnel working at the HAC in
Denver, Colorado, that she would lose eligibility for CHAMPVA
benefits if she were to enroll in Medicare Part B, and so relied
on this misinformation in failing to apply for Medicare Part B at
the time she applied for Medicare Part A. However, there is no
option to provide equitable relief of her reliance on the
misinformation allegedly provided by the VA employee. See
McTighe v. Brown, 7 Vet. App. 29, 30 (1994) citing Office of
Personnel Management v. Richmond, 496 U.S. 414, 424 (1990)
(holding that payment of government benefits must be authorized
by statute; therefore, erroneous advice given by a government
employee cannot be used to estop the government from denying
benefits).
The Board recognizes the appellant's sacrifices in donating a
kidney to the Veteran in May 2003, and undergone several
consequent surgeries. However, the Board is bound by the law and
is without authority to grant benefits on an equitable basis.
See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416,
425 (1994). There simply is no legal provision pursuant to which
the Board may grant the benefits sought. Therefore, entitlement
to CHAMPVA benefits beginning November 1, 2007, must be denied.
ORDER
Eligibility for CHAMPVA benefits for the appellant from November
1, 2007, is denied.
____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs